Mehar Singh vs Jaswant Singh

Dharam Chand Chaudhary, J.—Judgment and decree passed by learned Additional District Judge-II, Kangra at Dharamshala, in Civil Appeal No. 47-P of 1998, dated 27th December, 2000, is under challenge in the present appeal.

As a matter of fact, plaintiffs are the appellants, who have failed in both Courts below. The subject matter of dispute in the present lis is land entered in Khata No. 75 min, Khatauni No. 154 min, Khasra No. 197, measuring 0-02-58 hectares, situated in Mohal Bheri, Mauja Nanaon, Tehsil Palampur, District Kangra. The suit land admittedly is Abadi. The plaintiffs claim the same to be in their exclusive ownership and possession. Their grouse is that while preparing to raise construction over the suit land, the respondents (defendants in the trial Court), have objected thereto and not allowed them to raise the construction. They have based their claim on the ground that one Smt. Matti Devi previously was owner in possession thereof. She mortgaged the suit land with one Bhagat and Durga. On her death Shri Ram Rath, the predecessor-in-interest of the plaintiffs and their uncle Ghataru, inherited her estate. Shri Ram Rath got redeemed the mortgage on payment of Rs. 200/- to the mortgagees. After the death of Shri Ram Rath, they have inherited the suit land and are owners in possession thereof for all intents and purposes.

The stand of the respondents-defendants on the other hand is that the suit land being Abadi is in their peaceful possession and as the plaintiffs tried to raise construction forcibly thereon, they rightly objected thereto and not allowed them to raise such construction.

Learned trial Court after holding full trial has arrived at conclusion that the plaintiffs have miserably failed to prove themselves to be the owners in possession of the suit land and the suit, therefore, has been dismissed. Learned lower appellate Court has affirmed the judgment and decree passed by learned trial Court, vide judgment and decree under challenge in the present appeal.

The legality and validity of the impugned judgment and decree has been assailed on the grounds inter alia that both Courts below have failed to appreciate the evidence available on record in its right perspective. It has been pointed out that the documentary evidence, i.e., Exts. P.1 to P.7 and C.1, makes it crystal clear that the suit land is in the ownership and possession of the plaintiffs. In Ext. C.1 there is a reference of house and cowshed of Smt. Matti Devi and it is the plaintiffs who have inherited the same on her death, therefore, the findings to the contrary are not legally sustainable.

Appeal has been admitted on the following substantial question of law:

Whether both the Courts below have misread and misinterpreted the oral and documentary evidence on record, more specifically the documents Ext. P1 to P7 and Ext. C-1 and mark X in dismissing the suit of the plaintiffs-appellants?

The respondents have not opted for putting appearance, as they failed to appear even after the service of actual hearing notice also.

On behalf of the appellants-plaintiffs, learned Counsel has tried to explain that both Courts below have erroneously concluded that it is only the land measuring 18x9 and 11x7 beneath the house and cowshed, was mortgaged by deceased Smt. Matti Devi and not the entire land bearing khasra No. 197, as according to learned Counsel, Ext. P.6 reveals that the land belonging to Smt. Matti Devi measuring 3 kanals 8 marlas alongwith one slate-posh house having dimension of 18x9 and cowshed 11x7 was mortgaged to Bhagat and Durga, which on payment of Rs. 200/- was got redeemed by Shri Ram Rath, predecessor-in-interest of the plaintiffs. The findings, therefore, so recorded by both Courts below, according to learned Counsel, are neither legally nor factually sustainable, being not recorded on appreciation of the evidence in its right perspective.

Before adverting to the evidence available on record it is apt to mention here that in second appeal concurrent findings recorded by both Courts below on appreciation of evidence normally should not be interfered with unless and until perverse and not legally sustainable.

In the plaint khasra number of the suit land has been given as 197 and its area is 0-02-58 hectares. There is no mention qua its old khasra number(s) and area. Exts. P.1 to P.7 have been pressed into service in this regard. As per entries in Ext. P-7, Jamabandi for the year 1930-31, there is mention of the land measuring 3 kanals 8 marlas alongwith one slate-posh house in the dimension of 18x9 and one cowshed 11x7, bearing khata No. 19 and 22, khasra No. 93 to the extent of 1/4th share of deceased Smt. Matti Devi mortgaged with Bhagat and Durga in lieu of Rs. 200/-. The plaintiffs claim that it is this land, the subject matter of dispute. However, in case the entries in the Jamabandi for the year 1960-61 (Ext. P-6) are seen, Khasra No. 93 (old) after consolidation of holdings was changed into khasra No. 102 (new). Its area has been recorded as 0-13 kanals. Khasra No. 102 came to be changed into khasra No. 197 and its area is 0-02-58 hectares, i.e., the suit land, as per entries in the Jamabandi for the year 1990-91 Ext. P.5.

From the evidence hereinabove, the old khasra number of the suit land bearing khasra No. 197 though can be traced, however, the area thereof differs because in the extract of register of mutation Ext. P.7 its khasra number is 93 and area 3 kanals 8 marlas, whereas in Ext. P.6, the Jamabandi for the year 1960-61, the new khasra number is 102 and its area 13 marlas. Now its khasra number is 197, however, the area 0-02-58 hectares. There is no link evidence that it is the same land find recorded in Ext. P.6, the suit land for all intents and purposes including its area. Otherwise also, entries in Ext. P.6 reveal that it is the land measuring 3 kanals 8 marlas alongwith one slate-posh house and one cowshed, was mortgaged in lieu of Rs. 200/- by Smt. Matti Devi in favour of Bhagat and Durga. The size of the house and cowshed is 18x9 and 11x7, however, square feet or square meter or in any other form of measurement is missing in this document.

I am not satisfied with the submissions that as per entries in this document besides the land beneath the house and cowshed there remains vacant land also and it is over that land the plaintiffs intend to raise the construction for the reason that what is mortgaged to Bhagat and Durga is land measuring 3 kanals 8 marlas alongwith slate-roofed house and one cowshed constructed thereon. There cannot be any doubt qua the land mortgaged to Bhagat and Durga, was beneath the construction of house and cowshed and not vacant land. It is not even stated so by PW-1 Raghunath (plaintiff No. 2) and PW-2 Shri Amar Singh, none else but grand father of the plaintiffs while in the witness box.

Interestingly, the evidence available on record rather not establishes the exact identity of the suit land to be the one as was mortgaged to Bhagat and Durga by Smt. Matti Devi and subsequently inherited by Shri Ram Rath on her death, who later on got the same redeemed on payment of Rs. 200/-. The evidence, therefore, is that the mortgaged property was in the form of constructed area as there was a house and one cowshed in existence thereon. There is no evidence suggesting that vacant land was also mortgaged by said Smt. Matti to Bhagat and Durga. The evidence consisting of oral and documentary has, therefore, been rightly appreciated by both Courts below. The contentions to the contrary that there is misappreciation and misreading of the evidence available on record, are not only far-fetched, but imaginary also. Therefore, on reappraisal of the evidence available on record I am satisfied that the Courts below have not committed any irregularity or illegality in dismissing the suit. The impugned judgment and decree, therefore, calls for no interference in the present appeal and rather deserves to be affirmed.

In view of what has been stated hereinabove, this appeal fails and the same is accordingly dismissed. Parties to bear their own costs.